Thoughts on Brennan’s Speech
[Gabor Rona is the International Legal Director of Human Rights First]
The Obama administration’s charm offensive on targeted killings continues in response to calls from a broad spectrum of political and legal observers for greater government transparency. The latest entry is Monday’s speech by John Brennan, the president’s chief counterterrorism advisor. Each successive speech by a government official brings some new tidbit, gloss or nuance into the public domain. Sometimes though, it appears that instead of being a deliberate and coordinated drip feed, the speeches by Brennan, by State Department Legal Advisor Harold Koh, by Department of Defense General Counsel Jeh Johnson and by Attorney General Eric Holder are the tips of competing icebergs, reflecting pitched battles within and across government agencies about the legality of targeted killings. For example, earlier this year, NY Times reporter Charlie Savage highlighted a dispute between Koh and Johnson about the scope of targetability under international laws of armed conflict. The latest Brennan speech has some new tidbits, but may also be a signal that Johnson’s expansive view of targetability has prevailed over Koh’s views that are more consistent with the limitations of international law.
Brennan’s says that “(i)n this armed conflict, individuals who are part of al-Qa’ida or its associated forces are legitimate military targets. We have the authority to target them with lethal force just as we targeted enemy leaders in past conflicts, such as German and Japanese commanders during World War II.” The use of the WW II analogy is not new, but Brennan’s sweeping and incorrect claim of who is targetable under international law is something deeply troubling that I don’t think has quite so starkly appeared in previous official U.S. apologia for targeted killings, whether by Koh, Brennan, Johnson or Holder.
The analogy between al Qaida or associated forces, on one hand, and German and Japanese commanders during WW II, on the other, is flawed. German and Japanese commanders in WW II were targetable because they were members of the armed forces of the enemy. It is far from clear, however, that “individuals who are part of al-Qa’ida or its associated forces” are members of “enemy armed forces.” First, al-Qaeda today is not the al-Qaeda of 9/11, and the 2001 Authorization for Use of Military Force specifically limited military force to those who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001. Even assuming arguendo that they are, those being targeted might have no role in hostilities against the U.S., they might have no role in hostilities at all against anyone, or they may have undertaken some hostile acts but no longer do so. The law of armed conflict does not limit targeting to enemy armed forces, but it does prohibit targeting others unless, and only so long as, they are directly participating in hostilities or otherwise perform a continuous combat function. In other words, while members of the armed forces are targetable due to their status, any other targeting powers derive from the individual’s conduct, not his or her status. Brennan lumps all these people into one targetable category – a clear misapplication of international humanitarian law that offends the most fundamental principle of that law: the principle of distinction between combatants and civilians.
Some more troubling aspects of Brennan’s remarks:
- his apparent agreement with Obama’s statement the day after the bin Laden operation, that the killing amounts to the delivery of “justice.” I don’t question the legitimacy of the operation here. In fact, I believe bin Laden was indeed targetable under international law. But permissible killing in armed conflict is not justice. Would anyone use that term to characterize the lawful massacre of U.S. forces landing on the beaches of Normandy? And killing suspected criminals outside the scope of armed conflict absent a trial, a guilty verdict and a death sentence is simply extrajudicial killing. This much is suggested by the 2010 Alston report (accessible on the UN OHCHR website) on targeted killings, and more recently, in a paper published by Christophe Paulussen available on the website of the International Centre for Counter-Terrorism. (He makes the case that such killings confer impunity in light of that term’s definition in the 2005 ‘Updated Impunity Principles’ submitted to the UN Human Rights Commission: “the impossibility of bringing perpetrators of violations to account, whether in criminal, civil, administrative or disciplinary proceedings.”) In short, rather than delivering justice to bin Laden, the U.S. delivered death and a guarantee of eternal impunity.
- his assertion that al Qaeda’s “associated forces” (whatever those are) are equally targetable, regardless of their conduct. This administration has taken great pains to distinguish itself from the Bush “war against terrorism,” asserting instead that the U.S. is not at war against terrorism per se, but only against al Qaeda and its “associated forces.” In practice, and as most recently articulated by Brennan, the overbreadth of war against “al Qaeda and its associate forces” leaves little daylight between Bush and Obama on the subject of who is the enemy. Brennan’s assertion that there are “thousands” of members of al Qaeda and associated forces who the U.S. could legally target if it wishes fairly suggests an over-broad assertion of targetability. It is ominously ironic that Brennan recognizes the precedential value of U.S. policy to other countries developing remote targeting capabilities, and then suggests that if we don’t actually kill every one of these thousands, it’s only because we don’t want to, not because it may be unlawful. The next time some dictator kills a dissident, either at home or abroad, either by drone strike or an assassin’s bullet to the head, and justifies it on the basis of “war or imminent threat just like the U.S. does,” will it be enough for the U.S. to respond “that’s not what we meant?
- his statement that “the United States Government conducts targeted strikes against specific al-Qa’ida terrorists.” This is objectionable first because it lends credence to the false notion that suspected terrorists are automatically subject to extrajudicial execution, and second because it misrepresents the scope of U.S. targeted killing policy. In fact, the so-called “signature strikes” are not directed against “specific al Qaeda terrorists.” They are directed against unknown individuals who are suspected of either terrorist or insurgent activity or by virtue of their affiliations or other suspicious activity. In describing the process used to determine an individual’s targetability, Brennan addresses only those operations that involve a named individual placed on a “kill list.” He entirely ignores the possibly more pernicious strikes, more likely based on circumstantial evidence, against unknown individuals. Such strikes have previously been conducted by the military’s secretive Joint Special Operations Forces and have just been opened up to the even less transparent and less accountable CIA.
- his minimization of the “collateral damage” problem. First, it is far from cavalier to suggest that from the reasonable perspective of a peaceable tribeswoman in Yemen, the mere sound of a drone, hovering day in and day out over the heads of her children, is the very essence of terrorism. Second, the suggestion that civilian casualties are minimal (he’s come some distance from his previous assertion that there had not been a single collateral death) is inseparable from his overbroad assertion of who (or what conduct) meets the criteria for targeting. Third, without an institutionalized process of public accountability, we can have no confidence that the official figures for “collateral damage,” even according to inflated concepts of targetability, are valid. Despite all the speeches, the administration’s response to allegations of errors and evidence that significant numbers of innocent civilians are being maimed and killed remains “trust us.”
Finally, there is the question of whether the U.S. remains at war at all, since all of Brennan’s attempts to justify targeted killings assume powers that exist under the law of armed conflict. (True, he does also pay lip service to the notion of an inherent right to self-defense that does not depend on the existence of war, but he does not defend existing U.S. killing policy on that ground, so there is no occasion to argue about it here.) I am not so troubled by the notion that the U.S. could be in an armed conflict against the Taliban and al Qaeda, even though I think it counterproductive and even though international law is far from clear that the relevant hostilities, especially those beyond Afghanistan and the tribal territories of Pakistan, amount to armed conflict. International humanitarian law clearly covers certain hostilities between State and non-State armed actors. Whether it, and therefore the targeting powers of war, apply to such hostilities depends on a) the existence of an enemy who is sufficiently identifiable and organized with a command structure so as to be capable of exercising the rights and responsibilities of IHL (whether or not it chooses to do so), and b) a frequency and/or severity of hostilities that continues to exist at a level above that of “sporadic acts of violence” and “internal disturbances.” In light of these standards, Brennan’s confidence that U.S. targeted killing practices are lawful because ‘we are at war and the laws of war permit killing’ is way misplaced.